CHRIS KLITSCH et al. v. RICHARD W. GILBERT, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6619-03T26619-03T2

CHRIS KLITSCH and

AUDREY KLITSCH,

Plaintiffs-Appellants,

v.

RICHARD W. GILBERT, BERNADETTE

DILLER, LYNN M. PETERSON, VAULT,

LEILA J. MOHRMANN, THOMAS J. MANN,

III,

Defendants-Respondents,

and

RICHARD W. GILBERT,

Defendant/Third-Party-Plaintiff

v.

THOMAS J. MANN, III,

Third-Party Defendant.

_________________________________________

 

Submitted November 16, 2005 - Decided

Before Judges Conley and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, BUR-L-3643-02.

Segal & Burns, attorneys for appellants (David W. Burns, of counsel and on the brief).

John J. Spence, Jr., attorney for respondent Richard W. Gilbert (Raymond F. Danielewicz, on the brief).

Lally & Reynolds, attorneys for respondent Bernadette Diller (Mr. Lally, on the letter-brief).

Green, Lundgren & Ryan, attorneys for respondents Lynn M. Peterson and Vault (Matthew K. Mitchell, on the brief).

Gregory J. Sutton, attorney for third-party defendant-respondent Thomas J. Mann, III (Janet Law, on the brief).

PER CURIAM

Plaintiffs appeal summary judgment granted defendants dismissing their personal injury automobile accident complaint on the basis of the Automobile Insurance Cost Reduction Act's verbal threshold, N.J.S.A. 39:6A-8a. The sole basis for the summary judgment motion was the contention that genuine disputes of fact did not exist as to what was, at the time of the motion, the "second prong" of the verbal threshold test, i.e., serious life impact. E.g., Oswin v. Shaw, 129 N.J. 290, 318 (1992). Indeed, defendants conceded during the argument on the motion that genuine issues of fact exist as to the then "first prong", i.e., objective, credible evidence of one of the statutory threshold category of injuries caused by the accident.

We now know that all a plaintiff need do to vault the verbal threshold is to prove "by objective clinical evidence, supported by a physician certification, under penalty of perjury, an injury [caused by the subject accident] fitting into one of the six statutorily defined threshold categories." Serrano v. Serrano, 183 N.J. 508, 518 (2005). Plaintiff need not show that the injury was "serious," ibid., or had caused "a serious life impact," DiProspero v. Penn, 183 N.J. 477, 506 (2005).

Here, plaintiff claims a "permanent injury within a reasonable degree of medical probability . . . ." N.J.S.A. 39:6A-8(a). A permanent injury is shown, within the meaning of the statutory threshold requirement, when plaintiff's evidence proves that "the [injured] body part . . . has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. As we have said, a genuine issue of fact on this requirement was conceded by defendants at the time of the motion. We, therefore, do not engage in the efforts by counsel in their appellate briefs to contend to the contrary.

 
Reversed and remanded for further proceedings consistent with this opinion.

The following colloquy between counsel and the trial judge reveals that concession:

THE COURT:

Now, who has motions for summary judgment on the verbal? . . .

[DEFENSE COUNSEL 2]:

Yes.

THE COURT:

[Defense counsel], you as well?

[DEFENSE COUNSEL 3]:

Yes.

THE COURT:

Oh, everybody does?

[DEFENSE COUNSEL 3]:

Yes.

[DEFENSE COUNSEL 1]:

All joined in. I'll stand to it.

[DEFENSE COUNSEL 4]:

Yes. Also - me too.

THE COURT:

Oh, okay. Then - okay. All right. Well, let me just - are the defendants arguing permanency? It seemed to me that they were arguing significant life impact and not - permanency was objected . . . .

[DEFENSE COUNSEL 1]:

Your Honor, I filed the original application, and I specifically skipped over the first prong to focus on the second prong, because I believe there is an issue that would defeat a motion on the first prong.

THE COURT:

That's the sense that I got. Does anybody else disagree with that approach, that we just go to the second prong?

[DEFENSE COUNSEL 2]:

I'm fine with that, Judge.

[DEFENSE COUNSEL 3]:

Yes, Your Honor.

[DEFENSE COUNSEL 4]:

Yes, Your Honor.

THE COURT:

Okay. So, let's go to the second prong.

[Emphasis added.]

(continued)

(continued)

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A-6619-03T2

December 2, 2005